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Examining Article 157 (11) of the Constitution of Kenya 2010 in light of the Shakahola Massacre

Chapter 9, Article 157 of the Constitution of Kenya 2010 establishes the Office of the Director of Public Prosecutions (ODPP). The President appoints the Director of Public Prosecutions (DPP) with the approval of the National Assembly.[1] The DPP’s qualification should be similar to that of the Judge of the High Court.[2] His functions are delegated to subordinate officers who exercise their authority in accordance with general or specific instructions.[3] As a public officer, the DPP must act in a manner that is consistent with the objects and purpose of the Constitution.[4]

Article 157(11) states that the Director of Public Prosecutions (DPP) shall have regard to the public interest, interests of the administration of justice and the need to prevent and avoid abuse of the legal process.[5] This is further buttressed in the Office of the Director of Public Prosecutions Act and the National Prosecution Guidelines.[6] Of these three principles, the most controversial and misunderstood is ‘public interest’. Should it be applied in substantive law, procedural law or both? What is the importance of public interest in prosecution? How has it been applied in prosecution? I shall attempt to look at the meaning and application of public interest as per Article 157(11) of the Constitution of Kenya 2010. 

Defining public interest

Defining public interest is challenging as it invites philosophy, politics and law. Some authors have equated this to defining love, as it means different things in different contexts.[7] In addition, unlike other legal concepts, public interest is applicable both in nature and procedure.[8] The Black’s Law Dictionary provides two definitions; first, to mean the general welfare of the public that warrants recognition and protection. Second, as something in which the public as a whole has a stake; especially an interest that justifies government regulation. Seyyid Jafar equates public interest to common good.[9] I shall attempt to explain how these three approaches are applicable in our criminal justice system.

Public interest as a procedural requirement

Procedurally, public interest is a factor considered in determining whether or not to prosecute.[10] The National Prosecution Policy provides for a two-stage test, namely the evidential test and public interest test.[11] It is important to note that the evidential test is given priority before the public interest test.[12] Some of the factors favouring prosecution in the public interest include; the nature of the crime, whether the offence is grave and deserves a penalty, the use of violence in the crime or whether the offence was committed by public officers.[13] If the case is trivial and attracts a lower sentence, or the danger posed to the public is trivial, then it is not in the public interest to prosecute such crimes.[14] For example, theft is a crime,[15] however, it would be unreasonable for the state to prosecute a student stealing a pen worth ten shillings, as the danger caused to the public is not as serious as robbery with violence.

Public interest as a common good

The theory behind penal laws is for the common good of society. In Ubuntu, African council of elders exercised prosecution powers on behalf of the entire community. Hard-core criminals were exiled for society’s common good. From the social contract theory, the state was mandated to prosecute crimes that are harmful to society especially in protection of life, property and liberty.[16] When a murderer is jailed, the public is safe from individuals who arbitrarily take away life. When a thief or an armed robber is convicted, the right to property is safeguarded. When a pedophile is sentenced to death, this serves as a warning to potential criminals and gives faith to society that the state is vigilant and acting in the best interest of the public. This duty to prosecute is taken away from the ‘people’ by the state so as to protect the interest of the accused too, which is enshrined in the Constitution.[17]

Duty of prosecutors in victimless crimes

Public interest can also be looked at from the lens of the victims.[18] There exist offences that have no immediate victims such as drug trafficking, environmental and corruption cases.[19] The prosecution must therefore propose laws to curb these vices. For example, the prosecution of persons who did not follow the Covid-19 rules in 2020 was in the interest of the public.[20] It was in the public’s best interest that the spread of Covid-19 virus was curbed. This explains the role of public interest in prosecution.

Guiding principles

Public interest in prosecution is not an amorphous concept. Its application must be guided by the rule of law as opposed to tyranny of the people. These can be deduced from the constitutional requirement that prosecutors must act independently without control of any person or authority.[21] In addition, the interest of the accused is safeguarded by Article 50, which provides for the right to a fair trial. Therefore, when the public shouts ‘crucify him!’ as it was in the time of Jesus, the prosecution cannot proceed to crucify the accused. They must rely on the evidence before them that the accused committed the alleged offence before proceeding to prosecution. In addition, the crime must have been in existence at the time of commission.[22] This shows how individual rights are protected in prosecution.

In Kenya’s legal system, the prosecution relies on evidence submitted by the investigation officer. The investigating officer is expected to interlink adduced evidence and the accused. His role is crucial to the prosecution. Therefore, it is important to know that the prosecution heavily relies on the testimony of investigating officers.[23] The role of the prosecutors in an investigation is limited. When these cases fail, they often face backlash from the public and accused of not delivering their mandate. Consequently, there is need for the prosecution and the police to ensure that convicts are brought to book.

Conclusion

In conclusion, public interest in prosecution should be balanced with individual rights. It should be viewed holistically, inviting the role of the state in prosecuting crimes vis a vis individual rights. Furthermore, prosecution officers should make recommendations on emerging curbing merging crimes as their duty to take into account public interest.

The author is a law student at Kabarak University. He is interested in Constitutional Law and Public International Law.


[1] Constitution of Kenya 2010, Article 157(2).

[2] Constitution of Kenya 2010, Article 157 (3)

[3] Constitution of Kenya 2010, Article157(9).

[4] Constitution of Kenya 2010, Article 73(a)(i).

[5] Constitution of Kenya 2010, Article 157(11).

[6] ODPP Act, Section 4.  

[7] Public Interest in Criminal Procedure and Its Challenges: An Attitude toward Iranian Criminal Law, Vol. 9 Journal of Politics and Law; No. 5; 2016 Seyyed Jafar Es-haghi & Mahdi Sheidaeian, Page 1.

[8] The New Public Service, Denhardt, J. V., & Denhardt, R. B. (2010)., Page 6.

[9] Public Interest in Criminal Procedure and Its Challenges: An Attitude toward Iranian Criminal Law, Vol. 9 Journal of Politics and Law; No. 5; 2016  Seyyed Jafar Es-haghi & Mahdi Sheidaeian, Page 1.

[10] National Prosecution Policy, 2012

[11] National Prosecution Policy, 2012

[12] Guiding and Protecting Prosecutors, International Center for Transitional Justice, October 2019, Page 4.

[13] National Prosecution Policy, 2012.

[14] National Prosecution Policy. 2012.

[15] Penal Code, Chapter XXVI.

[16] John Locke, Two Treaties of Government, 1690.

[17] Constitution of Kenya 2010, Article 50.

[18] Prosecution in Public Interest – https://www.riksadvokaten.no/wp-content/uploads/2017/10/Prosecution-in-the-Public-Interest.pdf-

[19] These crimes affect the public at large as opposed to individuals.

[20] People Daily, Punitive fines for anyone caught flouting Covid rules, People Team, Thursday November 5th 2020- https://www.pd.co.ke/news/punitive-fines-for-anyone-caught-flouting-covid-rules-57986/-

[21] Constitution of Kenya, Article 157(10)

[22] Constitution of Kenya, Article 50(n).

[23] SC vs Republic,  Criminal Case No 22 of 2017.